Friday, May 29, 2009

I am honestly befuddled as to why so many Republicans are swooping on Sotomayer for saying the following:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Firstly, it was said in a symposium issue entitled "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation." So, the fact that she was a Latina and a judge was the very reason she was being asked to speak. That was the perspective she was being asked to bring.

Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care.

She specifically states that to take the view - which people are wrongly attributing to her - would be to be "myopic". Indeed, she states that many are capable of understanding, "the values and needs of people from a different group".

Her overall point is that the bench would benefit from the inclusion of more people from all walks of life and all backgrounds. She is arguing that the understanding needed sometimes takes more effort than some people are willing to give, not that such understanding is impossible, or that coming from one ethnic group or sex automatically grants or excludes such understanding.

No-one would argue that a bench made up exclusively of white males would be incapable of reaching a fair conclusion in sex discrimination cases, but it would certainly be no bad thing to have the perspective of women somewhere in that mix. You can agree or disagree with that, which is the totality of her point, but to describe what she is saying as "racist" is to stretch credibility too far.

She is not saying what is being attributed to her by looking at that one sentence out of context.

As of September 20, 1998, of the then 195 circuit court judges only two were African-American women and two Hispanic women. Of the 641 district court judges only twelve were African-American women and eleven Hispanic women. African-American women comprise only 1.56% of the federal judiciary and Hispanic-American women comprise only 1%. No African-American, male or female, sits today on the Fourth or Federal circuits. And no Hispanics, male or female, sit on the Fourth, Sixth, Seventh, Eighth, District of Columbia or Federal Circuits.

Sort of shocking, isn't it? This is the year 2002. We have a long way to go. Unfortunately, there are some very deep storm warnings we must keep in mind. In at least the last five years the majority of nominated judges the Senate delayed more than one year before confirming or never confirming were women or minorities. I need not remind this audience that Judge Paez of your home Circuit, the Ninth Circuit, has had the dubious distinction of having had his confirmation delayed the longest in Senate history. These figures demonstrate that there is a real and continuing need for Latino and Latina organizations and community groups throughout the country to exist and to continue their efforts of promoting women and men of all colors in their pursuit for equality in the judicial system.

As I say, she is clearly arguing for the need, "to have more women and people of color on the bench." She is clearly not arguing that one group is better than another.

UPDATE II:

Mike Littwin makes a good point about this "new racism" which Limbaugh, Tancredo and others seems to be seeing everywhere:

Forget about a post-racial America. Now we've moved to some new kind of racial world, in which the R-word is no longer reserved for, say, Bull Connor or someone standing on schoolhouse steps shouting "segregation forever," but also for a Supreme Court nominee making a point about gender and ethnicity on the bench at a conference about, yes, gender and ethnicity on the bench.

And Newt Gingrich, hinting at a run for president in 2012, tweets — because he's hip — that "New racism is no better than old racism. A white man racist nominee would be forced to withdraw. Latina woman racist should also withdraw."

This "new racism" which Gingrich detects is, of course, the racism which is being heaped upon the poor white folks. It's a way for the most dominant culture to pretend that everyone is out to get them and that they are the real victims of the piece.

This is what I find so despicable about this. Neither Gingrich nor Limbaugh or Beck have any notion of what it feels like to be hated because of your colour. They have never in their lives experienced any form of prejudice against them. If one was to list all of the dominant factions in society, they belong to all of the most powerful ones: They are all white, male, hetrosexual and Christian.

And yet they have the sheer gall to take the language of people who have experienced prejudice and imply that they are the victims of a "new racism". It's beneath contempt.

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That is why the greatest danger of all is to allow new walls to divide us from one another.

The walls between old allies on either side of the Atlantic cannot stand. The walls between the countries with the most and those with the least cannot stand. The walls between races and tribes; natives and immigrants; Christian and Muslim and Jew cannot stand. These now are the walls we must tear down.